Ducato moves this court for a new trial under Rule 33 of the Federal Rules of Criminal Procedure. The court may grant a motion for new trial "if required in the interest of justice." Fed. R. Crim. P. 33. However, such motions "are not favored by the courts and are viewed with great caution." United States v. Kamel, 965 F.2d 484, 490 n. 7 (7th Cir. 1992) (collecting cases). There exists a strong hesitation "before setting aside a jury verdict and ordering a new trial." United States v. Ghanayem, 1994 U.S. Dist. LEXIS 7456, 1994 WL 247069, *2 (N.D. Ill. 1994) citing Id. When confronted with a motion for a new trial based upon newly discovered evidence under Federal Rule of Criminal Procedure 33, "Courts exercise great caution ... because of the importance accorded to repose, regularity of decision-making, and conservation of judicial resources." United States v. Young, 20 F.3d 758, 763 (7th Cir. 1994) citing United States v. Kamel, 965 F.2d 484, 490 (7th Cir. 1992). In that connection, the Seventh Circuit "has established a four-part test a defendant must satisfy to establish his right to a new trial." Id. The defendant must demonstrate that the evidence "(1) came to [his] knowledge only after trial; (2) could not have been discovered sooner had due diligence been exercised; (3) is material and not merely impeaching or cumulative; and (4) would probably lead to an acquittal in the event of a retrial." Id. quoting Jarrett v. United States, 822 F.2d 1438, 1445 (7th Cir. 1987). See also United States v. Nero, 733 F.2d 1197 (7th Cir. 1984); United States v. Oliver, 683 F.2d 224, 228 (7th Cir. 1982).

Ducato's motion is advanced in two parts relating to: 1) Government witness Bustami and 2) Government witness Bruno. Ducato alleges that Bustami committed perjury; that the newly discovered evidence proves as such; and that the Government, in violation of Defendant's due process rights, failed to disclose exculpatory information to the defense. Defendant also alleges that newly discovered evidence is available to further impeach Bruno's credibility, and to show that Bruno committed perjury.

Defendant's motion states that "when the claim incorporates an allegation that the witness(es) testified falsely, as here, a 'more lenient test' is utilized." The "more lenient test" Defendant describes derives from Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928) and, more recently, United States v. Reed, 2 F.3d 1441 (7th Cir. 1994). See also United States v. Mazzanti, 925 F.2d 1026, 1029 (7th Cir. 1991). The prerequisite to utilizing the "Larrison test" is that the court is "reasonably well satisfied" that there was false testimony. See Id. See also United States v. Austin, 103 F.3d 606, 609 (7th Cir. 1996). Following this "threshold factual determination," the court then considers whether a "jury might have reached a different conclusion absent the false testimony [or if it had known that testimony by a material witness was false] and [] whether the party seeking the new trial either was surprised by and unable to meet the false testimony or did not learn of its falsity until after trial." See Id.; United States v. Reed, 2 F.3d 1441 (7th Cir. 1994); United States v. Mazzanti, 925 F.2d 1026, 1029 (7th Cir. 1991). There is no reason to pursue the elements of the Larrison test as it is clear from the record that Ducato was not convicted on the basis of false testimony. The court is not "reasonably well satisfied" that either Bustami or Bruno testified falsely at trial, nor is it reasonably satisfied that a "jury might have reached a different conclusion" without Bustami and Bruno's testimony if, in fact, their testimony had been false. As is more specifically set forth below, Ducato does not satisfy the Seventh Circuit's general test, either. Applying the principles set forth above to the instant case, Defendant's motion for new trial based on newly discovered evidence is denied.

Even applying the Larrison test, and assuming, which this court is not convinced, that Bustami testified falsely, there is no cause to find "that a jury might have reached a different conclusion absent the false evidence." United States v. Austin, 103 F.3d 606, 609 (7th Cir. 1996). As stated, the jury knew the abundant shortcomings of Bustami and still found Ducato guilty of conspiracy to distribute cocaine. What is notable about this decision is the fact that this same jury, based on all of the same testimony and evidence, including circumstantial evidence from DEA agents, tape recorded conversations, other surveillance evidence, evidence of Ducato's possession of an armed weapon and $ 90,000 of drug money at the crime scene, and so on, found Ducato not guilty of possession with intent to deliver cocaine. Clearly, the jury made a creditable assessment of Bustami's testimony, character, etc. in its findings.

Ducato further complains that his defense was impeded because the Government failed to disclose the Memorandum of Interviews and conversations with "Mike." The interviews were taken between October, 1996, and April, 1997, as discussed above. These interviews were conducted by prosecutors in an altogether unrelated case. According to Ducato's motion for new trial, such nondisclosure violated Ducato's due process rights under Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1197, 10 L. Ed. 2d 215 (1963) and Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104 (1972).

In Brady, the United States Supreme Court held that due process requires the Government to provide, upon request, "any evidence favorable to the accused which is material either to guilt or punishment." Brady v. Maryland, 373 U.S. 83, 87-88, 83 S. Ct. 1194, 1197, 10 L. Ed. 2d 215 (1963). See also United States v. Gonzalez, 93 F.3d 311, 315 (7th Cir. 1996); United States v. Veras, 51 F.3d 1365 (7th Cir. 1995). Evidence is material "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481 (1985). According to the Bagley Court, "[a] reasonable probability is a probability sufficient to undermine confidence in the outcome [of the trial.]" Id. at 682, 105 S. Ct. at 3383. In Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 1566, 131 L. Ed. 2d 490 (1995), the Court noted that "the question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence."

This obligation to disclose material evidence under Brady includes evidence that affects a government witness' credibility. See Giglio v. United States, 405 U.S. 150, 153, 92 S. Ct. 763, 765, 31 L. Ed. 2d 104 (1972). The Brady court noted that the government's obligation to disclose favorable evidence is "irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215 (1963). In Giglio, the Court held that when the reliability of a given witness may be determinative of guilt or innocence, suppression of such material evidence constitutes a violation of the due process clause and justifies a new trial. See Giglio v. United States, 405 U.S. 150, 153, 92 S. Ct. 763, 765, 31 L. Ed. 2d 104 (1972) noting Napue v. Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 1177, 3 L. Ed. 2d 1217 (1959).

The interviews at issue were given on 18 separate dates between October, 1996, and February, 1997. The jury in the instant case returned a verdict on July 18, 1996. Defendant argues that had the interviews been made available to the Defense, it would have been in a better position to impeach Bustami. Of course, these interviews had not been given until after Ducato's trial.

To have a new trial granted on a Brady claim, Ducato must show three elements: 1) that the evidence in question was favorable, 2) the evidence was suppressed, and 3) the evidence was material to the case. See United States v. Dimas, 3 F.3d 1015, 1017 (7th Cir. 1993). See also United States v. White, 970 F.2d 328, 337 (7th Cir. 1992). The evidence, being addressed in the discussion of "newly discovered" evidence above, may well be favorable to some limited degree for cumulative impeachment purposes; however, Ducato cannot maintain that the evidence was suppressed by the Government at or before trial where the evidence was not gathered until after trial. In addition, the subject matter of the interviews was not related to the instant case. Ducato argues that "if this information was known within the prosecutor's office prior to sentencing, this and all relevant information pertaining to Bustami should have been formally disclosed at that time...." However, Ducato offers nothing to support that the Government indeed knew of the interviews, or their contents. The court is not convinced that the Government did know about the interviews at the time of trial, or even prior to sentencing, and even if the Government had known of the contents on or before December 20, 1996, the date of sentencing, there is no indication that the interviews up to that date were memorialized or included any information contrary to Bustami's testimony given several months earlier.

It is well-settled in our circuit that "Later developments ..., if any, are irrelevant because the question is whether the result would have changed if the prosecutors disclosed the evidence at the time, not whether the outcome would differ if the case were tried today." United States v. Dimas, 3 F.3d 1015, 1019 n. 3 (7th Cir. 1993). "The Brady analysis [is] limited to evidence known at the time of the trial." United States v. Veras, 51 F.3d 1365, 1375 (7th Cir. 1995). Moreover, the "Seventh Circuit limits this court's Brady analysis to the effect of the allegations which the government knew and failed to disclose at trial." United States v. Veras, 860 F. Supp. 471, 479 (N.D. Ill. 1994) aff'd 51 F.3d 1365 (7th Cir. 1995). The interviews at issue and the allegations made against Bustami are relevant only to Ducato's claim of newly discovered evidence and do not reach due process violations under Brady. Without further discussion of its prior analysis, the court finds that Ducato cannot show that the evidence sought was suppressed by the Government at or before trial or that the evidence was material to the defense at trial or in the sentencing phase. Moreover, there is no "reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481 (1985). Without such evidence, in this case, it cannot be said that Ducato received an unfair trial. See Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 1566, 131 L. Ed. 2d 490 (1995). Besides, "for purposes of the government's obligations under Brady and its progeny, it is axiomatic that the government need not disclose information that does not come into existence until after trial." United States v. Boyd, 833 F. Supp. 1277, 1297 n. 28 (N.D. Ill. 1993) aff'd 55 F.3d 239 (7th Cir. 1995).

Defendant also suggests that Bustami fled the country in violation of his bond on an unrelated matter and "at a retrial of [Ducato's] charges, Bustami would be confronted with his recent flight as evidence of his consciousness of guilt of having committed the offense of perjury [at Ducato's trial]...." Defendant states in his motion that an arrest warrant was issued on December 6, 1996 for Bustami's failure to appear. Again, the jury returned its verdict on July 18, 1996. Even if Bustami's flight from justice was related to this supposed consciousness of guilt of having testified falsely at Ducato's trial, an untenable inference at best, it is again merely impeaching material. To suggest that the court retry defendants every time an adverse witness crosses a legal line after a verdict has been rendered, and for the purpose of further impeaching that adverse witness' character and credibility, would be tantamount to establishing a revolving door in courtrooms throughout this country with no end or finality in sight.

Defendant refers to an affidavit dated April 15, 1997, in which it is stated that "at a meeting in a restaurant with Philip Bruno and Glenn Caithamer, [Baim] was told the check she gave for $ 42,000 would be held and not negotiated." Defendant infers that Bruno's alleged presence at this alleged exchange demonstrates Bruno's involvement in a scheme to defraud Ms. Baim. Even assuming that this information was not discoverable by even marginal diligence on Defendant's part, this information, and the whole line of inquiry seeking to further impeach Bruno's credibility, amounts to no more than "merely impeaching or cumulative" evidence. Id. That being the case, Defendant cannot satisfy prong three of the Seventh Circuit's test for the granting of a new trial based on newly discovered evidence. It is also clear that in light of the overwhelming impeachment of Bruno, and the display of other inculpatory evidence in this case, that this "newly discovered" evidence would not "probably lead to an acquittal in the event of a retrial." Id. Thus, the fourth prong that must be shown by a defendant to gain a new trial cannot be met.

Any assertion by the Defendant that the exchange at trial between Defense counsel and Bruno, wherein Bruno discussed the promissory note, the debt history, and the subsequent lawsuit was the basis for perjury, the Defendant offers nothing of substance to support the claim. Assuming arguendo that the allegations of perjury are true, and the "more lenient" Larrison test is applied, the Defendant still could not meet each requirement of the Larrison test. Even if the court believed Bruno falsely testified on this issue, such false testimony presented against the weight of all of the other evidence would not reasonably cause a jury to reach "a different conclusion absent the false evidence." See United States v. Austin, 103 F.3d 606, 609 (7th Cir. 1996). See also Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928).

Ducato's Brady claim cannot stand, either, for even if evidence regarding the relationship between Bruno and Caithamer was suppressed, which no evidence exists to substantiate such a claim, the Defendant cannot show that it was material. See United States v. Dimas, 3 F.3d 1015, 1017 (7th Cir. 1993). There is no "reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481 (1985).

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